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Criminal Petition for Special Leave to Appeal No. 290 of 1971, decided on 9th May 1972.
(On appeal from the order of the; Lahore, High Court, Lahore, dated the 18th October 1071, in Criminal Miscellaneous No. 544/T‑71).
Criminal Procedure Code (V of 1898),
S. 526‑Transfer of criminal cases‑Accused alleging that he had been a prosecution witness in a criminal case involving an uncle of trial Magistrate- Held: allegation if substantiated by production of a certified copy his deposition, case fit one for transfer to Court of another Magistrate.
Ch. Ghulam Mujtaba, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing : 9kh May 1972.
‑A case under section 376/368, 346/363, P. P. C. is pending against .the petitioner in the Court of Qazi Muhammad Afzal, Magistrate, Gujranwala. An application was made by him in the High Court under section 526, Cr. P. C. for transfer of the case from the Court of Nazi Muhammad Afzal to some other Court, on various grounds; including the allegation that he had appeared as a witness against Mirza Azam Beg, an ex‑Magistrate, who is the uncle of the trial Magistrate. A report was called from the learned trial Magistrate by the High Court, in which it was admitted by, him that Mirza Azam Beg 'vas 'his uncle, but he denied knowledge about the deposition of the petitioner against his uncle in any case. A learned Single Judge in the High Court has dismissed the transfer application on' the ground that the allegations in the transfer petition were' not substantiated by any evidence.
The learned counsel for the petitioner has argued by reference to the copy of F. I. R. No. 22 of Police Station, Hafizabad, that a case was registered against Mirza Azam Beg under section 5 of the Anti‑Corruption Act, and in the resulting challan, the name of the petitioner appears as one of the prosecution witnesses. This does not show that the petitioner has given any evidence against Mirza Azam Beg. But the learned counsel states that he can produce a certified copy of the statement of the petitioner made in the case against Mirza Azam Beg.
If it is correct that the petitioner had actually given a state went in a criminal case against the uncle of the trial Magistrate that would certainly raise a reasonable apprehension in his mind that he cannot have a fair trial at the hands of the trial Magistrate, who is the nephew of the aforesaid Mirza Azam Beg. We have, therefore, directed that the petitioner should renew his application for transfer before the High Court after attaching with it a certified copy of the statement which he had made against Mirza Azam Beg. With this direction, this petition is dismissed.
Order accordingly.
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